Vicente LLP Hemp Update: September 2024
Sep 12, 2024
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Federal Updates
DEA Will Hold Hearing on the Proposed Federal Rescheduling of Cannabis
The DEA announced it will hold a hearing on December 2, 2024 regarding the proposal to reclassify cannabis to Schedule III. The purpose of the hearing is to obtain “factual evidence and expert opinion” regarding whether cannabis should be transferred to Schedule III of the list of controlled substances. Any “interested person” can participate in the hearing (an interested person is a “person adversely affected or aggrieved by” the rule). Interested persons will have until September 30, 2024 to file a request with the DEA.
Read this article for more information about the hearing. If you would like to participate, see the instructions in the announcement.
State Updates
Governor Newsom Announces Emergency Regulations that Propose to Ban Ingestible Products with Any Amount of THC
On Friday, September 6, the California Department of Public Health posted proposed emergency regulations that, if adopted, will impose strict limits on the sale of food products with hemp ingredients that are “intended for human consumption.” The restrictions effectively ban any amount of THC in an ingestible product, set an age limit of 21+, and limit containers and serving sizes. As far as the effective date, once the Office of Administrative Law (OAL) posts the notice of pending emergency action (expected to be on Friday, September 13), the emergency regulations will undergo a 5-day public comment period. OAL has up to 10 days to review the regulations. Emergency regulations are effective for 180 days.
Details on the proposed regulations:
- For ingestible products, no detectable amount of THC per serving and a package can have no more than 5 servings
- Sales of hemp products intended for human consumption (food, food additives, beverages, dietary supplements) will be limited to adults 21 and over
- Proposes an expanded definition of THC to include 30 cannabinoids the department deems intoxicating, such as Delta-5, Delta-6, Delta-6a, Delta-7, Delta-10a, Delta-11, HHC, HHCH, HHCP, THCH
- Persons will be prohibited from manufacturing, distributing, or selling products that exceed a detectable amount of THC per serving or that include any of the listed cannabinoids deemed intoxicating
- Read the proposed emergency regulations and finding of emergency on the Department’s website
The Governor also held a press conference and issued the following statement: “These regulations will take effect immediately upon approval by the Office of Administrative Law. Sellers must begin to implement purchase restrictions and remove consumable hemp products containing any levels of detectable THC from shelves. State regulators, including the Department of Public Health, the Department of Cannabis Control, the California Department of Alcoholic Beverage Control (ABC), the California Department of Tax and Fee Administration, and state and local law enforcement officials, will begin immediate enforcement action.”
California Proposes Additional Advertising Restrictions for Hemp Products
California Senate Bill 1498 passed both houses and presented to the Governor for signature on September 11. The bill, if signed, will expand on existing laws governing the advertising and marketing of both cannabis and hemp products and provide for civil penalties for violations. The bill requires hemp advertisers to adhere to many of the same requirements as cannabis advertisers, including prohibiting advertising on billboards on highways that cross the California border and advertising within 1,000 feet of schools, daycares, playgrounds, or youth centers.
Georgia Publishes Proposed Regulations for Hemp Products
The Georgia Department of Agriculture (GDA) published proposed rules to implement recently passed legislation creating a regulatory framework for the sale of hemp products. The proposed amendments would set a maximum milligram limit on Delta-9 THC in food, beverages, topicals, and tinctures. Comments on the proposed rules can be submitted to the GDA until 4:30 pm ET on Friday, September 6, 2024. Details on the proposed rules and how to submit a public comment can be found here and here.
Missouri Bans Hemp Products Containing “Psychoactive Cannabinoids”
Missouri Governor Mike Parsons issued an August Executive Order banning hemp products with psychoactive cannabinoids. The Department of Health and Senior Services (DHSS) began enforcing the Executive Order on September 1, 2024. DHSS published a FAQ explaining the Executive Order and how DHSS intends to enforce it. In response to the broad ban on all hemp cannabinoid products, the Missouri Hemp Trade Association filed a lawsuit against the state over the governor’s enforcement order to the DHSS. The lawsuit seeks to prevent the state from enforcing the ban, which was issued without going through the rulemaking process. (MO Hemp Trade Assoc. V. Miss. Dep’t of Health and Senior Services). Gov. Parsons held a joint press conference with Attorney General Andrew Bailey, announcing new actions the state will take to enforce Executive Order 24-10.
New Jersey Bill to Require Cannabis Licenses for Sale of Hemp Products
New Jersey Senate Bill S3225 and Assembly Bill A4461 are awaiting action by the governor. The bills set strict minimum milligram limits, such that a cannabis license will be required to manufacture, distribute, and sell a product containing over 0.5 milligrams of THC per serving or 2.5 milligrams per package. September 12, 2024 is a key deadline for the governor to take action on the bill.
Rhode Island Issues Hemp Product THC Limits and Packaging/Labeling Requirements
The Rhode Island Industrial Hemp Program issued new regulations (230-RICR-80-10-1) effective on August 14, 2024. These regulations include new THC limits per serving and container and new packaging and labeling requirements. The Department of Business Regulation website provides guidance regarding the new rules.
International Updates
CBD Seizure Medication Completes Key Phase 3 Trial in Japan
Jazz Pharmaceuticals' cannabidiol-based seizure medication, Epidiolex, failed to achieve its primary goal in a late-stage clinical study in Japan. The study focused on its efficacy as an additional treatment for seizures associated with Lennox-Gastaut syndrome (LGS), Dravet syndrome (DS), and tuberous sclerosis complex (TSC) in young patients. Read more.
General Updates
Fourth Circuit Court Holds That Derivatives of Hemp Are Legal Under The 2018 Farm Bill Provided the Delta-9 THC Content Does Not Exceed 0.3%
In a Fourth Circuit decision involving a plaintiff terminated for failing a drug test after taking what she described as legal hemp products, a majority of the Court in the matter of Tonya Anderson v. Diamondback Investment Group, LLC, held that derivatives of hemp, including cannabinoids such as THC-O, are legal under the 2018 Farm Bill provided the delta-9 THC content does not exceed 0.3%. The Court emphasized that the 2018 Farm Bill covers derivatives, extracts, and cannabinoids, even synthetic ones, provided they come from hemp and meet federal THC limits. Notably, the majority disregarded the DEA's letter on THCO, which suggested that THCO is illegal due to its synthetic nature. Instead, the court relied on the 2018 Farm Bill’s statutory language, which includes hemp-derived cannabinoids, regardless of their synthetic or natural status, provided they meet the 0.3% delta-9 THC limit. The recent Loper decision had an important impact here, as it emphasized judicial deference to statutory language over agency interpretations when the statute is clear, reinforcing the court's dismissal of the DEA’s letter.
Events
September 29 | The Great Midwest Hemp Fest
Don’t miss your chance to hear Vicente LLP counsel Jason Tarasek discuss the cost-benefits of cannabis legalization in Wisconsin on September 29 during The Great Midwest Hemp Fest, a non-profit 501(c)3 organization with a mission to educate voters and advocate for change in Wisconsin’s legislation surrounding THC laws. Register now!
October 8 | Wine, Beer & Spirits Law Conference
Vicente LLP partner Michelle Bodian is slated to discuss the federal rescheduling of cannabis, further legalization, intoxicating hemp beverages, and more during the Wine, Beer and Spirits Law Conference in Denver, Colorado on October 9. Get your tickets here.
Stay updated with state-by-state hemp and cannabinoid product compliance guide